What is a Living Will?

Lawpack on May 13, 2020

You can use a Living Will to communicate, in advance, your wishes to refuse any medical treatment you may receive in the future, in case it’s not possible for you to express your preferences at the time.

It can be used in England & Wales and Scotland. But in England & Wales it’s also known as an ‘Advance Decision’.

A Living Will form can be used to refuse treatment you object to on religious grounds or for any other reason, and it can be used to refuse treatment that is necessary to save your life (‘life-sustaining treatment’).

It applies only to your health care and it cannot be used to make other decisions, such as those relating to your financial matters (including how any care should be paid for).

When a Living Will applies

To make one, you must be over 18 years of age.

It only applies when you’re no longer able to make decisions regarding medical treatment for yourself.

The Living Will form applies only to the treatment specified within it and only in the circumstances specified. It’s important that you’re very clear as to precisely what treatment you’re specifying in the form and in what circumstances you intend to refuse it.

Although you can use layperson’s language, in some cases it will be worth consulting your doctor for the precise definition of the treatment you wish to refuse.

It won’t apply if there are reasonable grounds for believing that there are circumstances which you didn’t anticipate at the time you made the form, and which would have affected your decision had you anticipated them.

It can be used only to refuse treatment. Although it will be treated as evidence of your wishes, it cannot be used to insist on a specific form of treatment being carried out.

It cannot permit any form of euthanasia or assisted suicide. If you have made one to refuse a specific treatment and it applies to the particular circumstances, your health care givers must honour it, even if they think that it’s in your best interests for you to have the treatment.

If it’s decided, for whatever reason, that your form doesn’t apply, it may still be treated as an expression of your wishes and desires and to assess whether the treatment is in your best interests.

Communicating your Living Will

A Living Will form can apply only where the person providing your health care is aware of it. You should think carefully about where you keep it and how it will be communicated to the relevant professional.

It may be necessary to have the form’s existence recorded on your health care notes and a copy kept with those notes. If it’s relevant, you may wish to carry a bracelet or card that draws attention to the existence of it. You should also consider making your family or friends aware of the existence of the form.

Updating your Living Will

It’s recommended that you regularly review any form you have made and update it as appropriate. If you update your form regularly, it’s more likely to be viewed as being applicable, if and when it’s needed. If you wish to revoke or withdraw it, it’s best that you do so in writing.

Stop worrying and make a Living Will today. 

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Published on: October 25, 2010

The benefits of making a Living Will

Lawpack on May 13, 2020

With a Living Will you can outline your personal wishes regarding medical treatment should a situation arise in the future where you get seriously ill and you’re not able to express your wishes.

You can use Living Will forms in England & Wales, and Scotland. But in England & Wales it is also known as an Advance Decision.

When you may need a Living Will

Many people are concerned about what will happen to them if they become very ill and are unable to communicate their wishes to anyone. Many fear the loss of dignity and the significantly decreased quality of life which can result from degenerative health conditions.

Medical technology has now advanced to such a degree that people can be kept alive even when they are brain dead. Some people, after careful consideration and discussion with their doctors, decide that they don’t want to receive treatments which would result in a meaningless and prolonged artificial existence.

They want to have the benefit of recording their decisions and the peace of mind of knowing that this will be communicated to the doctors. Opinions on how long a life can and should be prolonged have become increasingly subjective and it’s increasingly acknowledged that people should be allowed to have a say in their future medical care.

If you go into a hospital or a nursing home without specific written instructions, or appropriate notes of conversations with doctors having been made on your medical notes, the institution you enter will be legally bound to keep you alive by whatever means are deemed necessary and appropriate by the medical staff.

You can express your rational views on the circumstances in which you wouldn’t want such attempts to keep you alive to continue. A Living Will form, which has been made when a patient is in good health, is advantageous later on and it’s good evidence of your true feelings.

When a Living Will applies

Doctors are sometimes reluctant to honour the refusals by seriously ill patients because they cannot be certain that the decision is rationally made. With a Living Will form, they can respect your wishes, but do note that only refusals of medical treatments or procedures outlined in the form are binding on medical staff.

Requests for special treatments (other than pain management and basic nursing) may have persuasive force, but doctors don’t have to follow instructions outlined in the form.

Communication with your family

A Living Will form can let your family know what you want. Many families don’t want to accept that their loved one isn’t going to recover and they, therefore, feel that they have to try any procedure which is available.

You can also use it to appoint someone whom doctors may consult on health care matters for you; this person is referred to as a Health Care Proxy.

It’s advisable that you discuss the options in the form with your doctor and family before completing it.

Remember that you can change your mind at any time about a prior written directive in the form and you can consent to treatment which you had previously decided to refuse.

Stop worrying and make a Living Will today.

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Choosing someone to look after your affairs

Lawpack on March 27, 2020

If you’re worried that your affairs may be left in limbo if you get ill or have an accident, then you can use a Lasting Power of Attorney (LPA) to grant someone the power to look after your affairs.

Alternatively, if you feel that a close relative of yours is getting frail or there is a chance that they may become mentally incapable in the future, then you may think it’s wise that your relative gives you the authority to pay bills and sell assets on their behalf should they become unfit to do so.

Find out more about the different types of Power of Attorney available.

When you’re making a LPA (or a Continuing or Welfare Power of Attorney in Scotland), you need to choose who will look after you affairs in the future, if you’re not able to do so.

The person you select will be called an ‘Attorney’. But who do you choose to be an Attorney and can you choose more than one person?

How many Attorneys can I appoint?

You (called the ‘Donor’ in legal terms) can appoint one person to look after your affairs or you can choose more than one. Careful thought should be given when you’re choosing your Attorney, as they will be dealing closely with your personal affairs.

Also, do consider who would be a practical choice of Attorney. Someone living abroad, for example, wouldn’t be able to deal with your affairs that easily.

If you have more than one Attorney, you can require the Attorneys to act ‘jointly’, or ‘jointly and severally’, or jointly for some matters and jointly and severally for others.

If you appoint your Attorneys to act jointly, it means that they must all make any decisions together.

If you appoint your Attorneys to act jointly and severally, this means that they can make their decisions together but may also make their decisions separate from one another and need not consult each other about those decisions.

If you appoint your Attorneys to act jointly in respect of some matters and jointly and severally for others, then for those matters that you said they must act jointly they must agree but for the others they can act together or separately.

Who can be my Attorney?

Many people appoint family members to be their Attorney(s). For example, you can appoint your spouse as your Attorney, together with your children, with an informal understanding that your children won’t act while your spouse is able to do so.

But, by law, your Attorney must be over 18.

Also, if you’re making a LPA Property and Financial Affairs (or a Continuing or Welfare Power of Attorney in Scotland), the Attorney cannot be an undischarged bankrupt or an interim bankrupt and if they are made bankrupt, they will cease to be an Attorney (if they are the only Attorney, the Power will be automatically revoked).

This bankruptcy restriction doesn’t apply when you’re making a LPA Health and Welfare.

Can I replace an Attorney?

You can appoint a person to replace your Attorney(s) and the replacement will occur if the following happens:

  1. The Attorney refuses to act by ‘disclaiming’ the appointment (i.e. they have told the Office of Public Guardian that they no longer wish to act as an Attorney).
  2. They die or are made bankrupt (bankruptcy is only applicable to a LPA Property and Financial Affairs and a Continuing or Welfare Power of Attorney in Scotland).
  3. They are your spouse (or civil partner) and you get divorced and there are no other Attorneys (or the Attorneys can only act jointly) and no replacement Attorney.
  4. The Attorney doesn’t have ‘capacity’ to exercise the Power. (The Attorney can only take control of a certain matter if you don’t have the capacity to make a decision).

You don’t have to appoint a replacement but if you don’t, then a LPA will end when the Attorney can no longer act or any of the above prevent them from doing so.

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How to draw up a General Power of Attorney

Lawpack on March 27, 2020

A General Power of Attorney is a statutory form enabling you to authorise someone else to act on your behalf and in your name.

It applies only to your property and affairs and it cannot be used to authorise someone to make decisions concerning your personal welfare.

Drawing up a General Power of Attorney is easy to do as it’s a very straightforward document to complete.

Plus it does not need endorsing or countersigning by a solicitor to be effective.

Simply download Lawpack’s solicitor-approved General Power of Attorney form today and get started.

Here are our top tips on how to complete the General Power of Attorney form:

1. Start date

The Power begins on the date that the document is signed.

A General Power remains valid until it’s revoked, but it will be automatically annulled if you become incapable of making the decisions conferred by the Power.

Powers can be revoked orally, but to avoid misunderstanding it’s wise to write ‘cancelled’ on the original form or simply tear it up.

The General Power would also be revoked if you or the person you are giving the Power to dies or becomes bankrupt.

2. The ‘Donor’

The person who makes the Power and grants authority is called the ‘Donor’.

Only one person may make a General Power.

You must be over 18, have capacity to grant the Power and not be an undischarged or interim bankrupt.

3.  The ‘Attorney’

The ‘Attorney’ is the person you are giving the Power to. Due to the extent of the Power, you should only give it to somebody that you trust implicitly.

Anyone over 18, of sound mind and not an undischarged or interim bankrupt may act as an Attorney.

You can appoint one or more Attorneys.

If you are appointing more than one Attorney, they may be appointed ‘jointly’ or ‘jointly and severally’.

If you appoint your Attorneys to act jointly, it means that they must all make any decision together.

If you appoint your Attorneys to act jointly and severally, this means they can make their decisions together but may also make their decisions separate from one another and need not consult each other about those decisions.

4. Signature

You should sign the General Power in front of a witness.

5. Witness

A witness should sign the General Power. The Attorney cannot act as a witness, but otherwise there are no restrictions on who may be a witness.

There is no requirement as to who should witness the power of attorney. There is no requirement that it be witnessed by a solicitor and the form is still effective if it is not.

6. Restrictions

Once the General Power of Attorney is granted, the Attorney has full legal authority to take decisions and actions on your behalf in relation to your property and affairs, as if you were taking them yourself.

7. Liability

You remain liable for the actions of the Attorney.

 

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How to use a General Power of Attorney

Lawpack on March 27, 2020

A General Power of Attorney (GPA) is a document which authorises someone to act on your behalf and in your name.

It’s a relatively straightforward authorisation and can be used for a wide range of circumstances or for specific periods and events.

It doesn’t have the added complications of a Lasting Power of Attorney (LPA); as such it is a simple form to fill out.

A GPA can only be used with regard to your property and financial affairs. It cannot be used to authorise someone to make decisions concerning your personal welfare (unlike a Lasting Power).

When will I need a GPA?

You may need to create a General Power for specific events; for example, if you go abroad and wish to entrust the management of your business interests to a family member.

You can use it for a specific period or event, when your age and health make it unlikely that you could lose capacity during the duration of the Power.

When does it end?

A General Power of Attorney automatically ceases to have effect if you should become incapable of making the decisions conferred by the Power.

This is in contrast to a Lasting Power, which remains in force provided that it has been registered.

Who can make a GPA?

You must be over 18, have capacity to grant it and not be an undischarged or interim bankrupt.

What happens once it’s been granted?

In legal terms, the person giving the power is called the “Donor” in England & Wales or the “Granter” in Scotland. The person who is receiving the power is called an “Attorney”.

Once you have granted a General Power, you have given authority for the Attorney to take decisions and act on your behalf regarding your property and affairs, as if you were taking them yourself.

The exception is that the Attorney cannot make gifts.

What powers does the Attorney have?

A General Power of Attorney is very wide-ranging and as a result, an Attorney can do anything they think fit in relation to your property and affairs.

But the Power doesn’t cover functions which relate to certain special personal responsibilities. For example, an Attorney cannot normally perform in your role as a trustee or as a personal representative (i.e. administrator) of someone’s estate.

An Attorney cannot sign a Will on your behalf, take action concerning your marriage or delegate their Power to someone else.

Am I liable for the Attorney’s actions?

Yes, so you must only give the power to somebody you trust implicitly.

How long does a GPA last for?

If you become incapable of making the decisions conferred by the Power, the General Power is automatically annulled. Otherwise, a General Power remains valid until it’s revoked.

Can it be revoked?

Powers can be revoked orally, but to avoid misunderstanding it’s wise to write ‘cancelled’ on the original General Power of Attorney form or simply tear it up.

The General Power would also be revoked if you or the Attorney died or become bankrupt.

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